Terrorism and the Bill of Rights

In the aftermath of the Boston bombings last spring, GOP Sens. John McCain and Lindsey Graham and others called on Barack Obama to treat the surviving suspect in the bombings, Dzhokhar Tsarnaev, as an “enemy combatant” rather than as a criminal defendant. The episode highlighted the revolutionary change in the relationship of the American people to the federal government that took place in the wake of the 9/11 attacks. For while Obama rejected the plea to treat Tsarnaev as an enemy combatant, no one can dispute the fact that the president of the United States now wields the discretionary authority to go either way — enemy combatant or criminal defendant — with respect to people who are suspected of being terrorists.

Ever since 9/11 the president of the United States, together with the Pentagon and the CIA, has been wielding extraordinary emergency powers that historically have been wielded by the most powerful dictators in history. They include the power of the government to seize people, including Americans, cart them away to a military dungeon or concentration camp, torture them, keep them incarcerated indefinitely, and even execute them, perhaps after some sort of kangaroo military tribunal — all without judicial process to determine whether the person had done anything to warrant such treatment.

Such powers also include the power to assassinate people, including Americans, again without any sort of formal charges, trial by jury, due process of law, or other procedural rights and guarantees.